Karinthkara Kuzhiyil Surendran vs State Of Kerala
2021 Latest Caselaw 6406 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

        THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

  TUESDAY, THE 23RD DAY OF FEBRUARY 2021 / 4TH PHALGUNA, 1942

                       CRL.A.No.1181 OF 2006

    AGAINST THE JUDGMENT DATED 03.04.2006 IN SC 603/2004 OF
       ADDITIONAL SESSIONS COURT (ADHOC)-II, THALASSERY


APPELLANT/ ACCUSED :

            KARINTHKARA KUZHIYIL SURENDRAN,
            S/O.ANANDAN, AGED 39 YEARS, COOLIE,
            KALAVAPARAMBU HOUSE, ARABI,
            OLIKKAL,VAYATHUR AMSOM,
            KANNUR DISTRICT.

            BY ADV. SRI.CIBI THOMAS


RESPONDENT/ COMPLAINANT :

            STATE OF KERALA,
            REP. BY THE PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA,
            ERNAKULAM, KOCHI - 31.

            BY SENIOR PUBLIC PROSECUTOR ADV.M.S.BREEZ


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
23.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.1181 OF 2006

                                   2




                             JUDGMENT

Dated this the 23rd day of February 2021

Appellant was the sole accused in SC.No.603 of 2004 on

the files of the Additional Sessions Court, (Ad hoc-II), Thalassery. By

judgment dated 03.04.2006, appellant was found guilty for the

offences under Section 55(a) of the Abkari Act (for short, 'the Act')

as well as Section 471 read with Section 465 of the IPC. He was

sentenced to undergo rigorous imprisonment for two years and to

pay a fine of Rs.1,00,000/- for the offence under Section 55(a) of the

Act, in default to undergo rigorous imprisonment for three months.

For the offence under Section 471 read with Section 465 IPC, he was

sentenced to undergo rigorous imprisonment for one year and to pay

a fine of Rs.5,000/- in default to undergo rigorous imprisonment for

one months.

2. The prosecution case was that on 27.05.2002 at 8.00

p.m., the Sub Inspector of Panoor Police Station stopped the vehicle

bearing Registration No.KL-IIE-3261. Since the vehicle did not stop,

the same was chased and finally, 3865 packets of 75 ml. each of

Karnataka arrack was seized from the jeep as kept in 11 sacks, CRL.A.No.1181 OF 2006

thereby committing the offence under Section 55(a) of the Act. On

noticing that the actual registration number of the vehicle had been

partially altered so as to make it appear as '8261' instead of '3261',

offences under Section 468 IPC as well as 471 IPC were also charged

against the appellant.

3. After investigation, when the final report was filed, it

revealed a case exclusively triable by a Court of Session and hence

the same was referred for trial to the Sessions Court. The

prosecution examined PWs 1 to 10 and marked Ext.P1 to Ext.A5

apart from material objects MO1 to MO3. After analysing the

evidence adduced, the learned Sessions Judge found the accused

guilty for the offence under Section 55(a) as well as the offence

under Section 471 read with Section 465 IPC and imposed the

punishment as mentioned earlier.

4. Adv. Sri.Lohidakshan, the learned counsel appearing on

behalf of Adv. R.Surendran contended that the accused was wrongly

convicted. He further pointed out that after PWs 1 and 2 turned

hostile, the prosecution did not examine any independent witnesses

to prove the allegations. It was also pointed out that in the absence

of any corroborating independent witnesses, the learned Sessions

Judge erred in convicting the accused. He also pointed out that the CRL.A.No.1181 OF 2006

appellant was only a driver of the vehicle while two other persons,

who were inside the car had managed to flee from arrest on the date

of incident itself and the police was not able to either pursue them

nor investigate into such an insulting escape. In such circumstances,

the learned counsel canvasses that the accused ought to have been

given the benefit of doubt. It was also argued that the offence under

Section 465 or 471 had not been proved at all and there was nothing

to mulct the appellant with such an offence.

5. The learned Senior Public Prosecutor Sri.M.S.Breeze,

on the other hand, argued that the quantity of contraband seized

from the possession of the accused was too large and that the

evidence adduced clearly pointed out to the guilt of the accused. It

was further argued by the learned Public Prosecutor that the guilty

mind of the accused was clearly evident from the manner in which

manipulation of the registration number of the vehicle was carried

out and also that merely because two persons travelling along with

the accused ran away, the same does not derogate from the

culpability of the the appellant.

6. I have considered the rival contentions. While PW10

was on patrol duty, the jeep driven by the accused was shown the

signal to stop. Disregarding the said signal, accused drove away in CRL.A.No.1181 OF 2006

an attempt to flee from the police intervention. The vehicle driven by

the accused had to be chased thereafter and was later intercepted.

On search of the vehicle, 11 sacks containing 3865 packets of arrack

were detected. The samples were taken properly and the same was

sent for analysis. By Ext.P10 chemical report, the sample was

reported as containing ethyl alcohol. The procedure for sampling was

strictly complied with and the forwarding note also was prepared in

accordance with law. The original 11 sacks seized from the vehicle,

were marked as MO3 series. There was also no delay in producing

the contraband before court. Thus no technical defects in the

procedure adopted by the detecting officer or the investigating officer

could be pointed out by the appellant.

7. The thrust of the contentions raised by the learned

counsel for the appellant was regarding the absence of independent

witnesses. It is true that PWs 1 and 2 who were the independent

witnesses examined to prove the seizure and arrest of the accused

turned hostile, but that by itself is not a sufficient ground to doubt

the prosecution story, if otherwise the evidence available before court

infuses confidence on the seizure and arrest. PW10 has clearly

stated that on the date of occurrence, the vehicle was intercepted

and on inspection, the contraband was seized. There is absolutely no CRL.A.No.1181 OF 2006

reason to doubt the evidence of PW10, who in spite of serious cross

examination did not vary from his stance. The evidence of PW10

certainly inspires confidence of the court to hold that even in the

absence of any independent witnesses, the prosecution case cannot

be doubted merely because the independent witnesses turned

hostile.

8. It is true that PW8 had stated in his evidence that

while the vehicle driven by the accused was intercepted, two persons

ran away. Though two persons ran away when the police intercepted

and they were not apprehended, that by itself is not a ground to

doubt the prosecution case as against the present accused.

Admittedly, the accused was driving the vehicle and the contraband

was seized from inside the vehicle. From the evidence adduced, it is

discernible that the accused was in control and dominion over the

contraband article and hence he is guilty of the offence of

transporting the contraband article. In the evidence of the hostile

witness, PW1, it was stated that he had seen the plastic sacks in the

vehicle driven by the accused. To that extent, his evidence can be

utilised in support of the prosecution. PW2 had also deposed about

the chase of the vehicle given by the police.

9. Thus from the conspectus of the evidence discussed CRL.A.No.1181 OF 2006

above, it can safely be concluded that the prosecution had clearly

proved beyond reasonable doubt that the accused had transported

the contraband articles thereby committing the offence under Section

55(a) of the Act.

10. As regards the charge under Section 465 IPC, it is

necessary for the prosecution to prove the making of a false

document with intend to cause damage or injury or to support any

claim or title. The evidence adduced in the case nowhere indicates

that the appellant had made any false document or false mark. The

burden was entirely upon the prosecution to prove that the alleged

forgery was carried out by the accused. Merely because the vehicle

driven by the accused contained a forged mark, the same by itself

will not be sufficient to prove the culpability of the appellant for the

offence under Section 465 IPC. None of the witnesses have stated

that it was the accused who made the forged mark. In such

circumstances, the finding of guilty of the accused for the offence

under Sections 465 and 471 of the IPC is liable to be set aside.

11. In the above circumstances, the conviction of the

accused for the offence under Section 55(a) of the Act is confirmed

while the conviction for the offence under Section 471 read with

Section 465 IPC is set aside.

CRL.A.No.1181 OF 2006

12. While considering the sentence to be imposed for the

accused, taking into reckoning the passage of 18 years from the date

of detection and also the fact that the accused was in jail from

27.05.2002 till 07.07.2002, I am of the view that the sentence

imposed on the accused ought to be modified. The accused is

imposed with a sentence of the period of imprisonment already

undergone apart from confirming the sentence of fine of

Rs.1,00,000/- already imposed by the Sessions Court. The default

sentence for failure to deposit the fine amount shall stand affirmed at

rigorous imprisonment for three months.

The appeal is thus allowed in part by confirming the

conviction of the appellant imposed by judgment dated 03.04.2006

on the files of the Additional Sessions Court (Ad hoc-II), Thalassery

but by modifying the sentence of imprisonment as stated above and

affirming the sentence of fine.

Sd/-

BECHU KURIAN THOMAS, JUDGE RKM